Williams v. Smith

• Decision Date: 11 December 1918
• Docket Number: 990.
• Citation: 97 S.E. 670,148 Ga. 615
• Parties: WILLIAMS v. SMITH.
• Court: Georgia Supreme Court

97 S.E. 670

148 Ga. 615

WILLIAMS v. SMITH.

No. 990.

Supreme Court of Georgia

December 11, 1918

Syllabus by the Court.

S. obtained a judgment against T. on the 26th day of September, 1917, for the purchase money of a certain lot of land, the judgment being both general and special, a special lien being created on the lot referred to. Under and by virtue of a fi. fa. based upon this judgment a levy was made both upon the lot of land upon which the judgment gave a special lien, and upon another lot of land not falling under the special lien, as the property of the defendant in fi. fa. W. brought his equitable petition for injunction and other equitable relief, seeking to restrain the enforcement of the judgment and fi. fa. upon the lot of land not covered by the special lien; it being alleged in the petition that on the 29th day of September, 1917, T., for a valuable consideration, had conveyed to petitioner the lot of land last referred to, and that the deed was recorded on that date. The judgment upon which the fi. fa. was based was rendered in the municipal court of Atlanta, and on the day of its rendition a motion for a new trial was made. The motion for a new trial was not heard instanter by the court, but was heard and overruled on November 29, 1917, and execution was issued on said judgment on December 3, 1917, and entered on the general execution docket of the superior court December 8, 1917. The judge upon hearing the evidence refused the injunction. Held, without deciding whether or not the deed from T. to W. would vest W. with title free from the lien of the judgment in favor of S., that the court did not err in refusing the injunction; for the petitioner has an adequate remedy at law under the statute, that is, by the filing of a claim, whereby he can have determined whether under the facts he takes the title conveyed in the deed from T. to himself free from the lien of the judgment in favor of S. Douglas v. Jenkins, 146 Ga. 341, 91 S.E. 49, Ann.Cas. 1918C, 322.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Suit for injunction by W. S. Williams against L. A. Smith, executor. Judgment for defendant, and plaintiff brings error. Affirmed.

B. L. Milling, of Atlanta, for plaintiff in error.

E. M. & G. F. Mitchell, of Atlanta, for defendant in error.

BECK, P.J.

Judgment affirmed.

All the Justices concur.